U football crisis: A unionized team would have sacked the problem

The short-lived "boycott" by the University of Minnesota football team, in reaction to the suspension of 10 teammates over allegations of sexual misconduct, illustrates both the strengths and weaknesses of the rights of big-time college athletes.

The erstwhile refusal to participate in next week's Holiday Bowl in San Diego was an attempt by strategic leverage to demand reinstatement of the players' suspended teammates, along with apologies and resignations of Athletic Director Mark Coyle, who made the suspension decision, and U President Eric Kaler, who supported it. After three days of tumult, the protest ended and the players returned to practice to prepare for the game against Washington State, grudgingly bowing to the reality that, as one player put it, their demands are "not going to happen."

The boycott demonstrated that the players lacked other means to try to get their concerns addressed. Although unusual, it was not unprecedented.

A number of other big-time college sports teams have staged similar protests, objecting to various matters, ranging from racial insensitivities to the termination of favored coaches. Some have succeeded in having their wishes fulfilled.

Although the crisis has ended for the short term, it is undeniable that both the Gophers football program and the U itself have suffered incalculable damage in the eyes of current players and their parents, future recruits, the media, donors and other backers, and the public at large.

The audible called by the players might not have been necessary, and the harm could have been averted or minimized, had other means of recourse been available to the squad. One such would be a labor union representing the interests of the players.

If a union existed, U officials would not have been able to take such precipitous action. Instead, they would have had to accord certain rights to the accused players, including giving them a preliminary hearing, known as a Loudermill procedure, to allow them to state their cases against discipline. Even if discipline had been imposed, the players could have pursued a multistep dispute appeal process, culminating in an arbitration proceeding before a neutral decisionmaker.

But without a union college athletes have none of these rights and are subject to the arbitrary and unilateral decisions of U authorities.

Alas, from the players' standpoint, there is no union, nor is there ever likely to be one. That's because the National Labor Relations Board (NLRB), the federal agency that oversees management-labor relations, ruled in 2015 that college athletes are not entitled to unionize. That decision came after a high-profile action by players at Northwestern University, the only private school in the Big Ten, aiming to form a union. An overwhelming majority of the team members indicated a desire to unionize, and a proceeding to authorize a formal vote on unionization was accepted by the NLRB office in Chicago.

News reports misleadingly indicated that unionization was a done deal and would be the model for labor organizations at other big-time college athletics factories. But it wasn't to be.

The NLRB Board in Washington, D.C., comprised of three Democratic appointees and two Republicans, unanimously ruled that the athletes could not form a union. The decision was somewhat surprising because many observers figured that the Democrat-dominated body would side with the interests of labor, particularly because of the importance that unions attached to the issue as a means of expanding their eroding influence.

But the board rejected the argument that the players should be viewed as employees due to the consideration they receive — scholarships, small stipends, etc. — to ply their skills and raise tons of money for their respective institutions. It reasoned, as Northwestern and its allies throughout college athletics had argued, that the players are just "students" who are not subject to federal labor laws and the protections they afford workers.

The decision dealt a potentially fatal setback to the incipient college athletic unionization movement. The NLRB has a long practice of reversing itself upon a change in administration or the ideological outlook of its appointees, the majority of whom are customarily members of the party occupying the White House. But the incoming Trump administration is hardly likely to encourage more unionization.

So, college administrators probably have trumped the union movement among college athletes for a long time to come.

As for the players, those at public institutions like the U could seek union status under state labor laws because they are not subject to the NLRB. However, state labor bodies might be inclined to follow federal reasoning.

The players are not the only losers in barring unions for college athletes. The institutions suffer, too, because the lack of restraints imposed by having to deal with unions makes them susceptible to the kind of erratic decisionmaking that plunged the U into such chaos.

While the Gopher gridders and a small band of fans are traveling to the Holiday Bowl, the long-term effects of the players' revolt remain to be seen. Had the union movement not been sacked, the Gophers and their fans might be on their way to sunny (and warm) San Diego without the accompanying chaos. But now the game, the fifth consecutive bowl battle for the Gophers, has become secondary to the controversy that surrounds it.

Whatever the outcome of the contest, this has not been much of a "holiday" to celebrate for the U, its athletic program, and its nonunionized football team.

Marshall H. Tanick is a Minneapolis employment and labor law attorney